2 Replies Latest reply: Jun 1, 2017 5:24 PM by Giovanna Tuttolomondo

State Farm, Fee Schedule and Attorney's fees

Giovanna Tuttolomondo
Visibility: Open to anyone
I know that 11 NYCRR 65-4.6(h) provides that no attorney's fees are payable where billing is above the fee schedule (unless it's a matter of interpretation). I haven't heard this argument in years. In my own experience, I rarely saw this section applied. But lately, every single State Farm case I've heard involved ardent requests to apply the "penalty."  Usually, it will be on a case where Applicant seeks regular acupuncture claims and then withdraws those claims based on Great Wall and seeks the remainder of claims for cupping, for instance. In those cases, I find the argument moot because the ordinary acupuncture claims were withdrawn and no attorney's fees are due anyway and the claims for cupping, for instance, do not have a clear cut fee schedule interpretation.

Last week I had two DME cases. The applicant billed 200.00 above the DME fee schedule and amended the amount accordingly. The respondent underpaid the claim because it erroneously stated that the DME did not have a rate assigned to the code and therefore applied the 150 percent formula.  Therefore, the applicant is entitled to additional reimbursement. Respondent's attorney conceded this but repeatedly argued that attorney's fees should not be awarded. 

Personally, I feel that this is not the case to apply the penalty, that Applicant still presents a good faith claim and that Respondent made a mistake itself. Am I wrong to essentially opine (although not in these words) that there is no harm, no foul and nobody is perfect? I feel that this is going to become the next big issue. 


  • Re: State Farm, Fee Schedule and Attorney's fees
    Victor Moritz

    I always allow an applicant to amend at the hearing to the proper fee schedule. I also differentiate between fee schedule matters that are billed above on its face and those which require some interpretation. As you noted, cupping is billed as unlisted procedure with a by report code and requires an interpretation. I rely upon expert analysis submitted by the parties or if there is none I use one of my prior determinations providing a relative value for the procedure and I do not believe this type of billing dispute that would ever warrant withholding attorney's fees. For that matter, under Great Wall,an L.Ac. can bill for CPT code 97810-97814 services at the prevailing rate, medical physician rates or chiropractic rates and a carrier is permitted to reimburse the claim at rates established for medical doctors or chiropractors.A bill submitted at the higher prevailing or medical physician rate is not in my opinion a violation of the fee schedule.

    In terms of the DME case, I agree with you, the applicant amended and the carrier conceded the Provider was entitled to additional money and I would award an attorney's fee.

    • Re: State Farm, Fee Schedule and Attorney's fees
      Giovanna Tuttolomondo

      Thank you for your insight, Victor.  A lot of the attorneys for the respondents are using arbitration hearings as a platform lately, to express their dissatisfaction with billing over the fee schedule.  And I have to continuously remind them to stick to their arguments and defenses and leave the soapbox for another time. And I ask them, what is the prejudice? I try to convey that we all play in the same sandbox.  Hope the week is going well!


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